Citation Nr: 0414006
Decision Date: 06/01/04 Archive Date: 06/10/04
DOCKET NO. 03-23 036 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUES
1. Entitlement to an increased evaluation for Crohn's
disease, currently evaluated as 30 percent disabling.
2. Entitlement to an evaluation in excess of 10 percent for
depression.
REPRESENTATION
Appellant represented by: Missouri Veterans Commission
ATTORNEY FOR THE BOARD
Michael J. Skaltsounis, Counsel
INTRODUCTION
The veteran had active service from October 1989 to February
1992.
Initially, the Board of Veterans' Appeals (Board) notes that
in January 2003, the veteran filed a claim for service
connection for a generalized anxiety disorder as secondary to
his newly service-connected depression. This matter is
referred to the regional office (RO) for appropriate
consideration.
The Board further notes that in his original claim for an
increased rating for Crohn's disease, the veteran sought an
evaluation in excess of 10 percent. Thereafter, an August
2002 rating decision increased the rating for this disorder
to 30 percent, effective from April 2001. The veteran has
appealed this decision. However, the Board finds that it is
necessary to remand this issue for procedural and evidentiary
considerations. This will be addressed more fully in the
Remand portion of this decision.
FINDING OF FACT
Service-connected depression is manifested by symptoms that
more nearly approximate occupational and social impairment
with occasional decrease in work efficiency and intermittent
periods of inability to perform occupational tasks, but not
occupational and social impairment with reduced reliability
and productivity. It also is not productive of occupational
and social impairment with deficiencies in most areas or
total occupational and social impairment.
CONCLUSION OF LAW
The schedular criteria for an evaluation of 30 percent, but
not higher, for depression, have been met. 38 U.S.C.A. §§
1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.130 Diagnostic
Code 9433 (2003).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Background
At the outset, the Board notes that while the Department of
Veterans Affairs (VA) may not be in complete compliance with
the notice and development provisions of the Veterans Claims
Assistance Act of 2000, 38 U.S.C.A. §§ 5102, 5103, 5103A,
5107 (West 2002) (VCAA), with respect to this claim, the
Board has determined that the evidence supports a grant of
the 30 percent rating sought by the veteran in his
substantive appeal. Consequently, any lack of notice and/or
development under the VCAA cannot be considered prejudicial
to the veteran, and remand for such notice and/or development
would be an unnecessary waste of VA time and resources.
A review of the history of this disability shows that the
veteran was originally granted service connection for
depression, evaluated as 10 percent disabling, in a rating
decision of October 2002, effective from April 2001.
VA outpatient records from May 2001 reflect that the veteran
was given an antidepressant and that the Axis I diagnosis was
depression not otherwise specified. The veteran was assigned
a global assessment of functioning (GAF) scale score of 70.
In September 2001, some cognitive errors were noted and the
veteran expressed negative ideas of self, the world, and the
future. Other related problems included sleep disturbance
and feelings of worthlessness and hopelessness.
In December 2001, the veteran's sleep was noted to be down
and he had an anxious mood and affect. In May 2002, the
veteran's sleep was again noted to be down and his mood was
depressed.
VA mental disorders examination in October 2002 revealed that
over the last several years, the veteran had stopped doing
many things other than work, and that he had considered
cutting his wrists but his Catholic faith dissuaded him. He
frequently longed not to wake in the morning. A recent
medication had produced a return interest in reading novels.
The veteran had never been married and lived alone. Mental
status examination revealed that attention and concentration
were within normal limits and there was no formal thought
disorder. The veteran did expression feelings of abandonment
and social disdain for others. He also expressed some
episodic suicidal ideation characterized by passive method.
Mood and affect were mildly dysphoric and sleep was noted to
be fragmented. Anxiety dreams were also noted to reflect
mood states. The Axis I diagnosis was dysthymic disorder
likely functionally and physiologically related to his
Crohn's disease. The veteran was assigned a GAF of 80, the
examiner noting that the veteran's prognosis was very good
with positive reactions from recent medication for Crohn's,
the medication Paxil, and the likelihood that he would
eventually find a meaningful relationship.
A VA outpatient record from January 2003 reflects that the
veteran experienced some help with his depression with Paxil
but that he still got anxious and blamed this for an accident
the other night. Mood and affect were noted to be fair.
II. Rating Criteria and Analysis
Service-connected depression has been evaluated as 10 percent
disabling pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9433
under the rating criteria for neuropsychiatric disabilities.
The criteria direct that a 10 percent evaluation is warranted
if there is occupational and social impairment due to mild or
transient symptoms with decrease work efficiency and ability
to perform occupational tasks only during periods of
significant stress, or symptoms controlled by continuous
medication. 38 C.F.R. Part 4, Code 9433.
The applicable rating criteria permit a 30 percent rating for
the veteran's disability where there is the following
disability picture:
Occupational and social impairment
with occasional decrease in work
efficiency and intermittent periods
of inability to perform occupational
tasks (although generally
functioning satisfactorily, with
routine behavior, self-care, and
conversation normal), due to such
symptoms as: depressed mood,
anxiety, suspiciousness, panic
attacks (weekly or less often),
chronic sleep impairment, mild
memory loss (such as forgetting
names, directions, recent events).
38 C.F.R. § 4.130, Diagnostic Code 9433, effective November
7, 1996.
The rating criteria permit a 50 percent rating for the
veteran's disability where there is the following disability
picture:
Occupational and social impairment
with reduced reliability and
productivity due to such symptoms
as: flattened affect;
circumstantial, circumlocutory, or
stereotyped speech; panic attacks
more than once a week; difficulty in
understanding complex commands;
impairment of short- and long-term
memory (e.g. retention of only
highly learned material, forgetting
to complete tasks); impaired
judgment; impaired abstract
thinking; disturbances of motivation
and mood; difficulty in establishing
effective work and social
relationships.
38 C.F.R. § 4.130, Diagnostic Code 9433, effective November
7, 1996.
The rating criteria permit a 70 percent rating for the
veteran's disability where there is the following disability
picture:
Occupational and social impairment,
with deficiencies in most areas,
such as work, school, family
relations, judgment, thinking, or
mood, due to such symptoms as:
suicidal ideation; obsessional
rituals which interfere with routine
activities; speech intermittently
illogical, obscure, or irrelevant;
near-continuous panic or depression
affecting the ability to function
independently, appropriately and
effectively; impaired impulse
control (such as unprovoked
irritability with periods of
violence); spatial disorientation;
neglect of personal appearance and
hygiene; difficulty in adapting to
stressful circumstances (including
work or worklike setting); inability
to establish and maintain effective
relationships.
38 C.F.R. § 4.130, Diagnostic Code 9433, effective November
7, 1996.
The rating criteria permit a 100 percent rating for the
veteran's disability where there is the following disability
picture:
Total occupational and social
impairment, due to such symptoms as:
gross impairment in thought
processes or communication;
persistent delusions or
hallucinations; gross inappropriate
behavior; persistent danger of
hurting self or others; intermittent
inability to perform activities of
daily living (including maintenance
of minimal personal hygiene);
disorientation to time or place;
memory loss for names of close
relatives, own occupation or own
name.
38 C.F.R. § 4.130, Diagnostic Code 9433, effective November
7, 1996.
The Board's review of the results of the veteran's October
2002 VA mental disorders examination indicates that while
attention and concentration were within normal limits, there
was no formal thought disorder, and a GAF of 80 was assigned,
the veteran did express feelings of abandonment and social
disdain for others, there was some episodic suicidal ideation
characterized by passive method, mood and affect were mildly
dysphoric, sleep was noted to be fragmented, and anxiety
dreams were also noted to reflect mood states. In addition,
VA outpatient treatment records reflect that in May 2001, the
veteran was given an antidepressant for his depression and
assigned a GAF of 70, in September 2001, some cognitive
errors were noted and the veteran expressed negative ideas of
self, the world, and the future, in December 2001, the
veteran's sleep was noted to be down and he had an anxious
mood and affect, and in May 2002, the veteran's sleep was
again noted to be down and his mood was depressed.
Consequently, while the veteran may not currently exhibit all
of the criteria required for a 30 percent evaluation, giving
the veteran the benefit of the doubt, the Board finds that
the veteran's sleep impairment, depressed mood, anxiety, lack
of meaningful interpersonal relationships, and, especially
the episodic suicidal ideation more nearly approximate the
next higher rating of 30 percent provided for occupational
and social impairment with occasional decrease in work
efficiency and intermittent periods of inability to perform
occupational tasks under 38 C.F.R. § 4.130, Diagnostic Code
9433. 38 C.F.R. § 4.7. The Board further finds that the
veteran's depression is not manifested by the type of
occupational and/or social impairment warranted for a rating
higher than 30 percent and the veteran has acknowledged that
a 30 percent rating would satisfy his claim on appeal. While
some of the veteran's symptoms may be consistent with a 50
and 70 percent rating, most of the criteria for these
evaluations are not demonstrated by current clinical
findings. Total occupational or social impairment is clearly
not indicated.
In conclusion, the Board finds that the overall degree of
functional impairment produced by the veteran's disability is
within the range contemplated by the newly assigned 30
percent evaluation. Nothing in this decision precludes the
veteran from applying for an increased rating in the future
should his symptoms increase in severity.
ORDER
A 30 percent rating is granted for depression, subject to the
applicable provisions pertinent to the disbursement of
monetary funds.
REMAND
With respect to the claim for an increased evaluation for
Crohn's disease, the Board first notes that the only
communication from the RO that could be interpreted as a
notice to the veteran of the evidence necessary to support
his claim and the respective obligations of the veteran and
VA to obtain that evidence, is a letter from the RO, dated in
November 2001. However, the Board finds that this letter
only addresses what evidence is necessary to substantiate a
claim for service connection, does not indicate what evidence
the veteran and VA is to provide with respect to his
increased rating claim, and does not request that the veteran
provide any evidence in his possession that pertains to this
claim under 38 C.F.R. § 3.159(b) (2003). Quartuccio v.
Principi, 16 Vet. App. 183 (2003). Consequently, the Board
finds that further action must be taken by the RO pursuant to
the VCAA as to this claim, and that at the very least, this
action must include furnishing the veteran with an
appropriate VCAA letter.
The Board further notes that the record reflects some
worsening of relevant symptoms, and the veteran's last VA
intestines examination was in September 2001. Therefore, the
Board further finds that while the case is in remand status,
steps would also be taken to afford the veteran with a new VA
examination to determine the nature and severity of his
service-connected Crohn's disease.
This appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify you if
further action is required on your part.
Accordingly, this case is REMANDED for the following actions:
1. The claims file must be reviewed to
ensure that any notification and
development action required by the VCAA
and its implementing regulations, court
decisions, and VA directives is
completed.
2. The veteran should be afforded an
appropriate VA examination to determine
the nature and severity of his service-
connected Crohn's disease. The claims
file should be made available to the
examiner for review in connection with
the examination. All indicated studies
should be performed, and all findings
reported in detail.
3. The case should again be reviewed on
the basis of the additional evidence. If
any benefit sought on appeal remains
denied, the appellant and his
representative should be provided a
supplemental statement of the case and
given the opportunity to respond.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant need take no action
unless otherwise notified.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the United States Court of Appeals for Veterans
Claims (known as the United States Court of Veterans Appeals
prior to March 1, 1999, hereafter "the Court") for
additional development or other appropriate action must be
handled in an expeditious manner. See The Veterans Benefits
Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat.
2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112).
______________________________________________
John E. Ormond, Jr.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
VA
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
VA
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